Monday, 4 October 2010

The U.S. Court of Appeals for the 11th Circuit, based in Atlanta, has set aside for reconsideration the Board of Immigration Appeals’ decision affirming a denial of asylum to a gay man from Serbia, finding that the Immigration Judge had relied on improper stereotypes about gay men in questioning the credibility of the petitioner, and that the BIA had failed to disavow the IJ’s reasoning. The court’s opinion was announced on September 27.

Writing for the unanimous three-judge panel, Judge Stanley Marcus related the petitioner’s horrific story of his mistreatment in Serbia and the generally adverse atmosphere for gay people in that country. Beginning in high school, the petitioner was identified by others as gay and subjected to harassment and abuse. When he came out to his parents, his father "beat him, threw him out of the house, and declared that he would rather Todorovic be dead." In addition, the petitioner alleged that his father "used personal connections" to have him conscripted into the Army, where he suffered further harassment and abuse. The petitioner also described abuse at the hands of law enforcement officials, including sexual assault.

After he had recovered from a particular vicious beating, he contacted a cruise line and applied for a job. This occupation brought him to the U.S., where he decided to stay and eventually applied for asylum. There are difficulties with his asylum application having been filed too long after his entry into the United States, but the court focuses more on the credibility determination by the Immigration Judge (IJ), presumably because the petitioner could still qualify for withholding of removal given the appropriate factual findings. At his asylum hearing, he submitted "a number of background articles regarding the treatment of homosexuals in Serbia.

Some of them referenced the attack on the gay pride parade, and one noted that in the aftermath of the attack, the Serbian Prime Minister and Belgrade’s Chief of Police said that Serbia was not ready to tolerate homosexuality." Other articles documented violent attacks on gay people by the police and youth gangs, and the 2006 State Department country report noted that "violence and discrimination against homosexuals was a continuing problem in Serbia, and that gays and lesbians were reported to experience ‘widespread threats, hate speech, verbal assault, and physical violence."

The transcript of the IJ’s oral decision denying the petition contains the following statement to which the appeals court strongly objected: "The Court would first note that the respondent says he is singled out for persecution because he is gay in his home country. The Court studied the demeanor of this individual very carefully throughout his testimony in Court today, and this gentleman does not appear to be overtly gay. The Court does not know whether he is or not, his testimony is that he is overtly gay and has been since he was 17 years old. Be that as it may, it is not readily apparent to a person who would see this gentleman for the first time that, that is the case, since he bears no effeminate traits or any other trait that would mark him as a homosexual."

Is it absurd that an Immigration Judge in the U.S. in the 21st century would make such a stupid statement on the record? Wrote Judge Marcus, "After thorough review, we conclude that the IJ’s decision was so colored by impermissible stereotyping of homosexuals, under the guise of a determination on ‘demeanor,’ that we cannot conduct meaningful appellate review of that decision, or of the BIA’s opinion essentially adopting it. In determining an applicant’s credibility, an Immigration Judge must consider the totality of the circumstances, including the applicant’s demeanor, the inherent plausibility of the applicant’s story, and the consistency among the applicant’s written and oral statements and other evidence of record. . . . The IJ alone is positioned to make determinations about demeanor - by observing the alien and assessing his or her tone and appearance - and in that sense is ‘uniquely qualified to decide whether an alien’s testimony has about it the ring of truth.’"

"At the same time," Marcus continued, "because of the ‘immense discretion’ conferred on those, such as an IJ, who find facts on the basis of oral testimony and demeanor, we require that credibility determinations made by an IJ rest on substantial evidence, rather than on conjecture or speculation. One clearly impermissible form of conjecture and speculation, sometimes disguised as a ‘demeanor’ determination, is the use of stereotypes as a substitute for evidence. Indeed, a number of our sister circuits have rejected credibility determinations that rest on stereotypes about how persons belonging to a particular group would act, sound, or appear."

Judge Marcus illustrated this point by citing decisions from the 2nd, 8th, and 10th Circuits where courts had rejected IJ credibility determinations based on the IJ’s assertion that gay asylum petitioners were not effeminate enough to meet the IJ’s stereotyped image of a homosexual man. "This case presents similar problems," wrote Marcus, "inasmuch as the IJ relied on impermissible stereotypes about gay people as a substitute for substantial evidence. Notably, Todorovic never testified that he was ‘overtly gay’ or that this was the reason for his persecution; rather, the abuses to which he testified were the result of hostility by people who appeared to know he was gay for reasons other than his appearance or behavior."

Marcus asserted that the IJ’s demeanor determination "rests on wholly speculative assumptions made by the IJ; it is untethered from any evidential foundation; and it is thoroughly vague in its reference to ‘other traits’ that would mark the petitioner as a homosexual. Whatever else these offensive observations made by the fact-finder were, they were not credibility findings based on demeanor, but instead were driven by stereotypes about how a homosexual is supposed to look." Marcus commented that such stereotypes "would not be tolerated in other contexts, such as race or religion." "We see no reason to tolerate them here," he asserted.

The court found that the BIA’s decision to affirm the IJ’s opinion "is similarly unreviewable because we cannot tell whether it, too, was tainted by the IJ’s improper stereotyping of homosexuals." The BIA endorsed the IJ’s conclusion on credibility, citing a few other questionable points in the petitioner’s testimony. "Rather than distancing itself in some obvious and pronounced way from the IJ’s so-called ‘demeanor’ determination," wrote Marcus, "the Board appears to have broadly embraced the IJ’s credibility determination." The court acknowledged that the BIA might have based its conclusion on other points in the record, but "it is not too much to ask the fact-finder to make its credibility determinations without the stain of this stereotyping, utterly unconnected to any evidence. Quite simply, we cannot tell with any degree of confidence what the basis for the Board’s opinion was. As a result, we are precluded from engaging in meaningful appellate review. Accordingly, we vacate the agency’s decision and remand for a new factual hearing, free of any impermissible stereotyping or ungrounded assumptions about how gay men are supposed to look or act."

The incompetence and political bias of some members of the IJ corps in dealing with gay asylum petitions during the Bush Administration was notorious. It is difficult to tell whether this is yet another delayed example, since the court does not mention the date of the IJ opinion, but the pace at which these cases move through the administrative process to judicial review is such that it is most likely that the IJ in question (who is not identified by name in the opinion) rendered his decision several years ago. One hopes that the process of change under the new administration has rendered this case a window into the unfortunate past rather than a look at continuing dysfunction. One can only hope.